WELLS FARGO BANK, N.A. v. ELYSE C. CAPALDI

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3695-16T1

WELLS FARGO BANK, N.A.,

        Plaintiff-Respondent,

v.

ELYSE C. CAPALDI; MR. CAPALDI,
husband of ELYSE CAPALDI;
DOMINICK A. CAPALDI; and
MRS. DOMINICK CAPALDI, his wife;

        Defendants-Appellants,

and

TD BANK, N.A.,

     Defendant.
_______________________________

              Submitted April 16, 2018 – Decided May 8, 2018

              Before Judges Sabatino and Rose.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Burlington County, Docket
              No. F-031516-14.

              David J. Khawam, attorney for appellants.

              Phelan   Hallinan  Diamond  &   Jones,  LLP,
              attorneys for respondent (Brian J. Yoder, of
              counsel and on the brief).

PER CURIAM
       In this residential mortgage foreclosure action, defendants

Dominick A. Capaldi and Elyse C. Capaldi appeal from an October

14, 2016 order of the Chancery Division, denying their motion to

vacate final judgment and dismiss the foreclosure complaint filed

by plaintiff Wells Fargo Bank, N.A.1         We affirm.

       In April 2007, defendants borrowed $230,000 from MortgageIt,

Inc.      Defendants executed and delivered to MortgageIt a note

promising to repay the loan.            To secure payment of the loan,

defendants executed a mortgage encumbering residential property

located in Marlton.        The mortgage was recorded in the county

clerk's    office   on   May   1,   2007.   On   May   10,   2013,   Mortgage

Electronic Systems, Inc., as nominee for MortgageIt, assigned the

mortgage to plaintiff.

       Defendants defaulted under the terms of the note in October

2013.     Plaintiff served defendants with a notice of intent to


1
 Defendants' merits brief does not address denial of their motion
to dismiss plaintiff's complaint.    Issues that are not briefed
with supporting legal arguments are deemed waived. N.J. Dep't of
Envtl. Prot. v. Alloway Twp., 
438 N.J. Super. 501, 505 n.2 (App.
Div. 2015).

     Further, defendants' notice of appeal also references a March
28, 2017 order of the Chancery Division, adjourning the eviction
to May 5, 2017, and extending the writ of possession through August
31, 2017. On May 4, 2017, defendants filed an emergent application
seeking to stay the eviction, which we temporarily granted to
consider the application. On May 5, 2017, we vacated the temporary
stay of eviction, and denied defendants' application for a stay
pending appeal.

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foreclose on April 25, 2014.      After defendants failed to cure the

default, plaintiff filed a foreclosure complaint on August 1,

2014.   Default was entered against the defendants on September 29,

2014.     Pursuant to 
N.J.S.A. 2A:50-58, by correspondence dated

January 7, 2015, plaintiff noticed defendants of its intention to

move for final judgment, and the procedure to cure the loan.             On

January 21, 2015, defendants attempted to reinstate the loan.

Because they submitted a personal check, in an insufficient amount,

plaintiff did not accept payment. On July 10, 2015, final judgment

was entered in favor of plaintiff.

     On   August   7,   2015,   plaintiff   assigned   the   mortgage    to

Wilmington Savings Fund Society, FSB, doing business as Christiana

Trust, not in its individual capacity, but solely as trustee for

BCAT 2015-13ATT ("Wilmington Savings").          A sheriff's sale was

scheduled for December 10, 2015.        Pursuant to 
N.J.S.A. 2A:17-36,

defendants exercised two adjournments, postponing the sale to

January 14, 2016.

     Defendants further delayed the sheriff's sale by filing an

emergent application with the Chancery Division, which adjourned

the sale until February 25, 2016.           Upon its submission of an

assignment bid to the sheriff, plaintiff purchased the property.

     In August 2016, more than five months after the sheriff's

sale, and a year after entry of the final judgment, defendants

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filed a motion to vacate the judgment pursuant to Rule 4:50-1(e)

and (f).    Defendants contended plaintiff improperly interfered in

their attempts to redeem the property and seek a loan modification.

     Following oral argument, the motion judge denied defendants'

request and issued a written statement of reasons on October 14,

2016.   Concluding defendants failed to provide the court with a

legal basis to vacate final judgment, and noting the lack of

evidence proffered by defendants demonstrating their attempts to

redeem the property, or plaintiff's interference in any such

attempted redemption, the motion judge denied defendants' motion.

     Following the issuance of a writ of possession on November

22, 2016, an eviction was scheduled for March 29, 2017.    A panel

of this court denied defendant's emergent application to stay

eviction, which was completed on August 28, 2017.      This appeal

followed.

     On appeal, defendants argue they are entitled to relief

pursuant to Rule 4:50-1(e) and (f), claiming plaintiff prevented

them from exercising their statutory right of redemption, and

vacating the judgment would allow them to continue seeking a loan

modification.2


2
 The preliminary statement of defendants' merits brief claims the
appeal "is based upon both standing and the objection to sheriff
sale for bad faith and a violation to the rights of redemption of


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     Our scope of review of the trial court's ruling on a motion

for relief from a judgment or order is exceedingly narrow.                       In a

foreclosure context, a trial court's decision, pursuant to Rule

4:50-1,     "warrants     substantial       deference,    and    should       not    be

reversed unless it results in a clear abuse of discretion."

US   Bank   Nat'l   Ass'n    v.   Guillaume,     
209 N.J.    449,    467    (2012)

(citations omitted).

      An abuse of discretion occurs "when a decision is made without

a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis."                  Ibid. (internal

quotation marks and citation omitted).                 We have long recognized

our task is to decide "only whether the trial judge pursued a

manifestly unjust course."         Gittleman v. Cent. Jersey Bank & Tr.

Co., 
103 N.J. Super. 175, 179 (App. Div. 1967).                        Further, the

movant bears the burden of demonstrating his or her entitlement

to relief.    Jameson v. Great Atl. & Pac. Tea Co., 
363 N.J. Super.
 419, 425-26 (App. Div. 2003).

      Rule 4:50-1(e) provides, in pertinent part, that a party may

be relieved from final judgment if "the judgment . . . has been

satisfied, released or discharged . . . or it is no longer

equitable    that   the     judgment    .    .   .   should     have    prospective


homeowners."   However, we need not reach defendants' standing
argument because they failed to brief it.

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application."         A motion pursuant to subsection (e) "must be

supported by evidence of changed circumstances," and "[t]he party

seeking relief bears the burden of proving that events have

occurred subsequent to the entry of a judgment that, absent the

relief    requested,       will     result       in   'extreme'        and    'unexpected'

hardship[.]"        Hous. Auth. of Morristown v. Little, 
135 N.J. 274,

286 (1994) (citations omitted).                  This rule is "rooted in changed

circumstances       that     call     the    fairness       of    the     judgment       into

question."     DEG, LLC v. Twp. of Fairfield, 
198 N.J. 242, 265-66

(2009).

        Pursuant    to   Rule     4:50-1(f),          a   trial       court   may   "vacate

judgments     for    'any    other     reason         justifying        relief    from    the

operation of the judgment or order.'"                     Guillaume, 
209 N.J. at 484

(quoting Rule 4:50-1(f)).             Relief pursuant to this subsection is

"available     only      when     'truly         exceptional          circumstances       are

present.'"     Ibid. (quoting Little, 
135 N.J. at 286).                          Thus, Rule

4:50-1(f) "is limited to 'situations in which, were it not applied,

a grave injustice would occur.'"                 Ibid. (quoting Little, 
135 N.J.

at 289).

        We have considered defendants' contentions in light of the

record and applicable law. We conclude they are without sufficient

merit    to   warrant       further    discussion          in     a    written      opinion.

R. 2:113(e)(1)(E).          We affirm substantially for the reasons set

                                             6                                       A-3695-16T1
forth in the motion judge's cogent written statement of reasons.

We add the following brief comments.

       Defendants do not deny they executed the note and mortgage.

Nor do they deny they have failed to pay the note since October

2013.    The record shows plaintiff recorded the mortgage, assigned

the mortgage to Wilmington Savings, and ultimately purchased the

property at the sheriff's sale.

       Further,       defendants    have      not    demonstrated       "changed

circumstances" warranting relief pursuant to Rule 4:50-1(e).                    In

particular, while defendants claim they did not discover plaintiff

assigned the note to Wilmington Savings until defendants retained

counsel after the sheriff's sale, that assignment does not render

the judgment void. See R. 4:34-3 (permitting an action to continue

against the original party following transfer of interest).

       Moreover, defendants were aware of the foreclosure action and

pending sheriff's sale, having adjourned the sale twice.                Pursuant

to Rule 4:65-5, defendants were entitled to redeem the property

within ten days of that sale.           Other than their inadequate pre-

judgment attempt to redeem the loan, defendants did not attempt

to cure the default within the requisite timeframe.

        We also are not persuaded defendants are entitled to relief

from    the   final    judgment    pursuant   to    Rule   4:50-1(f).      While



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defendants contend vacating the judgment would allow them to

continue seeking a loan modification, they have not presented any

proof that they can redeem the judgment.    Rather, as the motion

judge aptly recognized, because "the property has already been

sold, and the deed recorded, [p]laintiff would be substantially

prejudiced" by vacating default judgment.

    Affirmed.




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